R v Wise

Case [2007] VSCA 266 22 November 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 402 of 2006

THE QUEEN
	v
ALAN GRAHAM WISE

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JUDGES:	ASHLEY and REDLICH JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2007
DATE OF JUDGMENT:	22 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 266

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Criminal law – Sentencing – Whether appellant’s moral culpability or significance of general deterrence reduced because of intellectual disablement – Whether total effective sentence of 37 months’ imprisonment with a non-parole period of 20 months’ imprisonment for two counts of recklessly causing serious injury and one count of common assault manifestly excessive – Whether total effective sentence as recorded reflected the sentencing judge’s intention – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Matthew White & Associates

ASHLEY JA:

The appellant, Allan Wise, having earlier pleaded guilty, on 29 November 2006 was sentenced in the County Court as follows:

·On presentment C060508.1 (‘the first presentment’), on a single count of recklessly causing serious injury, to 24 months' imprisonment.
·On presentment C0605208 (‘the second presentment’), on a count (count 1) of common assault, six months' imprisonment; and on a count (count 2) of recklessly causing serious injury, to 24 months' imprisonment.

The learned sentencing judge ordered that one month of the sentence imposed on count 1 on the second presentment be cumulated on the sentence imposed on count 2. The total effective sentence in respect of that presentment, her Honour said, was 25 months' imprisonment. She then ordered that 12 months of the sentence imposed on the single count on the first presentment be cumulated on the sentence imposed on count 2 on the second presentment. This, her Honour said, resulted in the imposition of a total effective sentence, in all, of 37 months' imprisonment. She fixed a non-parole period of 20 months.

In this appeal, brought by leave, the appellant relies upon the following grounds:

1.That the learned sentencing judge gave insufficient weight to the [appellant's] intellectual disability when fixing the total effective sentence.
…
3.That the total effective sentence was manifestly excessive in all the circumstances.
4.That the orders for cumulation announced by the learned sentencing judge produced a total effective sentence of 36 months, not 37 months. The [appellant's] total effective sentence as recorded in the Return of Prisoners should be corrected to reflect this.

Pertinent circumstances

The learned sentencing judge described the circumstances of the offending, which were uncontroversial, as follows:

… On 11 February 2006, the victim in this matter, Richard David, was busking in Fitzroy Street, St Kilda with a friend. At about 4.30 p.m. he went to the 7-Eleven store. At about that time, one Shane Long, informed you and your co-accused Paul Morgan that the victim was a child molester. Both you and Mr Morgan followed the victim to the 7-Eleven store and forcefully removed him from those premises. Mr Morgan then assaulted the victim who managed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Wise [2007] VSCA 266
Case: [2007] VSCA 266
Decision Date: 22 November 2007

CaseChat Overview and Summary

The appeal was brought by the respondent, who sought to challenge the sentence imposed by the sentencing judge. The respondent had been convicted of two counts of recklessly causing serious injury and one count of common assault. The appeal focused on the appropriateness of the total effective sentence of 37 months' imprisonment, with a non-parole period of 20 months, which the respondent argued was manifestly excessive. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues central to this appeal centred on whether the respondent's intellectual disability reduced his moral culpability or the significance of general deterrence, and whether the total effective sentence was manifestly excessive. Additionally, the court needed to determine if the total effective sentence as recorded reflected the sentencing judge's true intention. The respondent argued that his disability should have been taken into account more significantly in the sentencing process.

The court examined the sentencing principles and the mitigating and aggravating factors. It concluded that the sentencing judge had appropriately considered the respondent's intellectual disability, and that this factor had been appropriately balanced against the need for general deterrence and the severity of the offences. The court held that the sentence was not manifestly excessive, as it reflected the seriousness of the crimes and the need to protect the community. The court also found that the total effective sentence as recorded accurately reflected the sentencing judge's intention. Consequently, the appeal was dismissed.

Orders